Labeling a person according to her gender highlights difference—really, ongoing hierarchies of power. Two recent incidents, both referencing sub-Saharan Africa, insert ‘women’ (as social category) into the world of universal jurisdiction.

In South Africa, sexualized violence in Zimbabwe is under investigation thanks to the logic of universal jurisdiction: mass rape, defined as a crime against humanity, can be tried anywhere. Members of Robert Mugabe’s ZANU-PF allegedly committed theelection-based violence in 2008. And the case, according to the director of Women under Siege, is nothing short of “groundbreaking.”

Further afield, the Netherlands has sentenced a Rwandan woman, now Dutch citizen, to over six years in prison for inciting genocide in her home country. This case is the first post-WWII genocide conviction in a Dutch court, far removed from the scene of the crimes. It also involves a woman; and very few women have been subject to universal jurisdiction.

There’s another noteworthy detail to the Dutch story. Yvonne Besabya, who was found guilty, is described as “the wealthy Hutu wife of a Rwandan lawmaker, who used her influence” to provoke violence. In troubling irony, Besabya’s own power—linked to her subsumed status as wife—may have kept her from perpetrating, not just inciting, genocide.

Women as objects of abuse and perpetrators of violence; as international jurists and human rights scholars, activists and mothers, peacemakers and troublemakers. The stories we tell of universal jurisdiction are no less gendered than the violence we commit and oppose.

If two wrongs don’t make a right, one right isn’t always enough. The UK’s recent use of universal jurisdiction against a Nepali colonel, for torture committed during his country’s civil war in 2005, has received a great deal of attention. Kumar Lama, who was serving on a peacekeeping mission in southern Sudan, was on holiday with his family at their home in East Sussex when he was arrested. Almost two months after the unexpected arrest, a British court on March 1st agreed to release Lama on bail.

Human rights activists, inside and outside Nepal, point to the incidence as a sign of hope and progress—transitional justice, at long last. Nepal’s government, in contrast, opposed the arrest, labeling it an incursion into its internal affairs. Despite the loud resistance, the government promptly agreed to resume implementing the peace process, including steps towards a truth and reconciliation commission.

For advocates of universal jurisdiction, these are all noteworthy developments; and they should be. But what of the British government’s refusal to prosecute other rights violators? Let’s not forget that states use universal jurisdiction selectively, reflecting the primacy of foreign policy in international law.

Human rights advocates must celebrate a progress without illusions. As Seyla Benhabib says of cosmopolitanism more generally, the human rights field is one of “unresolved contrasts”:

between particularistic attachments and universalist aspirations; between the multiplicity of human laws and the ideal of a rational order that would be common to all human cities… Cosmopolitans become dead souls only if they forget these tensions and contrasts and embrace instead a Pollyannaish, ceaseless affirmation of global oneness and unity. (Dignity in Adversity: Human Rights in Troubled Times, 2011), 2.

In the world of complex motives, Lama’s arrest sends an important signal about the power (and politics) of universal jurisdiction. So too does the Nepali government’s choice of legal team: the same lawyers who defended Augusto Pinochet are now representing Lama.

The “No Safe Haven” series has multiple audiences—lawyers, victims and their families, police, prosecutors, judges, and scholars—and it’s intended as a hands-on tool to facilitate accountability via prosecution for “the worst imaginable crimes.”

It’s a clever campaign, equating failure to prosecute with harboring of criminals. It’s also an unapologetic assertion—claiming an obligation in international customary law to prosecute or extradite egregious rights violators found within a state’s borders. And the notion of a safe haven conjures up other images, often out of view, glimpses of the accused running from their past.

Safe havens represent secure spaces, where those burdened with guilt can escape punishment while taking on new identities and livingprivate, ordinary lives. Is it possible to destroy others’ lives and still regain one’s own, without accounting publicly for wrongdoing? For all the talk of laws and policies, international (in)justice so often reduces to human intimacies, entangled in acts of violence and the search for solace.

Amnesty International’s “No Safe Haven” series ultimately unsettles the idea of impunity for human rights crimes: the perverse notion that people can torture and kill, then simply relocate and carry on with their mundane lives as if nothing had happened.

No one seems to have much of a problem applying universal jurisdiction to piracy. Last month’s ruling by Kenya’s Court of Appeals confirmed this, effectively reversing a 2010 judgment by the country’s High Court. Whereas the earlier decision emphasized crimes occurring in the national territory, the appellate court championed the principle of universal jurisdiction. Most significant was the economic rationale:

the offence of piracy… is of great concern to the international community as it has affected the economic activities and thus the economic well-being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

Piracy, of course, is historically linked to universal jurisdiction, which itself broadened under twentieth-century notions of human rights. The locus of universal jurisdiction gradually shifted, over the course of centuries, from crimes occurring in a common physical space “owned” by none —the high seas—to a metaphorical and moral space transcending the attachment to territory: egregious human rights abuses.

The evolving view now retains the transnational dimension but makes it all about economics. Those accused of piracy on the open seas can be tried by any country’s courts, not because of where the crime occurs or the analogy to grave human rights violations. Since piracy hurts transnational economic interests, the argument goes, universal jurisdiction is a real option.

In a changing world, it may well make sense to broaden the scope of universal jurisdiction. But this must be debated carefully, attentive to the implications for human rights accountability. How far, if at all, should the term be stretched conceptually? Once an economic rationale for universal jurisdiction is accepted, appeals to our shared humanity are likely to lose out.

As a follow-up to the report, the International Commission of Jurists (ICJ) issued a hard-hitting brief, calling on Nepal’s government to prosecute state actors and then-insurgents responsible for abuses. Not a single person has been brought to trial in the six years since the peace accords; nor have promised steps to truth-telling been taken.

The twist is that the ICJ followed up the call for accountability with a threat of sorts: if Nepal’s government doesn’t pursue accountability, other states shouldn’t hesitate doing so on the basis of universal jurisdiction. In a press release just after the U.N. report was made public, ICJ’s Asia Director Sam Jarifi reminded:

Nepal’s international supporters should press the government to meet its commitments and its obligations under international law….Meanwhile, all countries have an obligation to cooperate in investigation and prosecution of any individual facing credible allegations of serious violations of international human rights law and humanitarian law, including prosecution of suspected perpetrators under the doctrine of universal jurisdiction.

This new (secondary) appeal to universal jurisdiction in post-conflict situations is noteworthy. Will it advance or challenge sustainable forms of accountability? Nepal offers the latest but not last testing ground for debating the politics and ethics of linking universal jurisdiction to post-atrocity justice.

For the fourth year in a row, the Legal (Sixth) Committee of the U.N. General Assembly took up the issue of universal jurisdiction this month, debating its scope and application. One of the central themes to emerge was the idea that universal jurisdiction should be exceptional and supplementary. These criteria apply to both the traditional bases of jurisdiction and the choice of legal forum—in a debate where national sovereignty and political immunity were bandied about as obvious priorities.

In terms of the bases of jurisdiction, the consensus among states is that jurisdiction in international law should be tied, first and foremost, to territoriality and nationality. Only when states fail to invoke these bases of jurisdiction is the door open to claims of universal jurisdiction. But exactly how long does one wait for traditional jurisdiction to play out its course? And how do we know when traditional avenues of jurisdiction are effectively exhausted?

Regarding the choice of legal forum, the assumption is that universal jurisdiction should be secondary to international and regional mechanisms (and to domestic courts invoking traditional jurisdiction). This is akin to the idea of complementarity, which makes the International Criminal Court a forum of last resort. Yet what happens when individual survivors’ access to these higher-level mechanisms proves limited or blocked, impeded by onerous institutional hurdles and bureaucratic red-tape?

The “exceptional and supplementary” requirement seems reasonable at first glance: but is it always? Universal jurisdiction is a seemingly radical departure from the traditional. This feeds into the view that its abuse and manipulation can be curtailed only by defining it as exceptional and supplementary. It’s a misguided logic.

Perhaps the debate shouldn’t be about how to limit universal jurisdiction. If the heinousness of presumed crimes is what makes universal jurisdiction (and therefore accountability) possible, then the approach seems backwards. The more productive, though admittedly difficult, question is how to strengthen the pursuit of accountability across the board, in domestic and international contexts—to provide meaningful forums for voicing, investigating, and addressing accusations of abuse.

Until domestic and regional accountability mechanisms offer viable alternatives for those who have suffered horrific abuse, the debate over the scope and application of universal jurisdiction will seem disingenuous: an occasion for states to define universal jurisdiction narrowly, controlling and subverting the very likelihood that this weapon of the weak will be used against them.

I asked for the extradition of Pinochet, who had been investigated and charged with… genocide, torture, serious breaches of human rights… Assange is having a fundamental right breached too — freedom of expression — and that is why he has been granted political asylum. (Judge Baltasar Garzón)

The paths of Julian Assange and Baltasar Garzón have become curiously intertwined. Two global personages, rebuked for accusing powerful actors of egregious rights violations, abandoned by their home governments and up against a mountain of politicized charges. Both men, intriguing personalities, stand at the middle of controversies much larger than themselves, but also deeply personal, speaking truth to power while struggling with their own derailed lives. Somehow, their alliance—with Garzón now leading Assange’s defense—seems to reflect its own conspiracy of justice.

Those suspicious of the association have assailed Garzón for taking an untenable contradictory position: resisting Assange’s extradition from the UK to Sweden while pushing for Pinochet’s extradition from the UK to Spain. Garzón has countered that Pinochet was wanted for human rights crimes; Assange has been the victim of human rights crimes (i.e., of the right to free expression and potentially political asylum).

The debate’s emphasis reveals how much universal jurisdiction is mistakenly conflated with extradition. Requests for extradition are based on claims for jurisdiction, firmly ensconced in international law. Universal jurisdiction is one of those claims, linked to well-founded accusations of grave human rights abuses. The nature of the abuse is the starting point, followed by a claim for universal jurisdiction, and only then extradition. Most of the time, extradition has nothing to do with universal jurisdiction.

Garzón and others opposed to extraditing the WikiLeaks founder fear that Assange may be extradited to a third country (the United States) for a new set of political charges (espionage) after he has already been granted asylum (by Ecuador). It’s an altogether different dynamic…when those daring to expose human rights crimes themselves become the targets of politically motivated abuse.

Late last spring a group of East African magistrates met in Kigali to discuss the question of universal jurisdiction in Africa. The May meeting of the East African Magistrates and Judges Association (EAMJA) was a sounding board for critical perspectives, with universal jurisdiction linked closely to Western imperialism.

The International Criminal Court’s first sentencing in July seemed to play into the view. After ten years in existence, the court had tried one case and sentenced a single person: a Congolese rebel leader. To be sure, Thomas Lubanga Dyilo committed indefensible acts. But, still, for critics, the ICC’s overwhelming focus on African states—given a world of abuse, far beyond the continent’s borders—has always seemed morally lopsided. So too has universal jurisdiction, permitting former colonial powers to sit in distant judgment.

The summer did bring more positive signs. First there was the appointment of Gambian Fatou Bensouda as the ICC’s second chief prosecutor, an African woman replacing the “charismatic but controversial”Luis Moreno-Ocampo. Next, there was the highly anticipated ICJ decision on July 20, calling on Senegal to try or prosecute Hissène Habré. Four days later, in consultation with the African Union, Senegal’s government (itself headed by a new president) announced it would create a special tribunal for the former Chadian dictator. The “potentially groundbreaking” court now awaits donor funding.

Consistent with these developments, members of the judiciary who convened in Rwanda’s capital last May were looking to standardize the rule of law and promote greater judicial integration. As the EAMJA president said,

East Africa is not limited to being the international law user; it has to be a producer, developer and shaper of that law.

Similar thoughts were echoed 45 years earlier in Dakar, when the first meeting ever of African judges took place. The idea, then and now, has been to resist neo-imperialist incursions by strengthening domestic and regional systems of law. Of course, in some circles, where people study how ideas and institutions diffuse, they might call this coercive socialization.

Regardless, discontent with the international practice and politics of universal jurisdiction is leading to deliberation and domestic legal change. These are important advances in an otherwise imperfect and evolving system of global justice. A more complete touchstone of success will be whether people’s access to fair accountability mechanisms actually improves and becomes regularized.

In gearing up for Kiobel v. Royal Dutch Petroleum at the U.S. Supreme Court this fall, debates are raging about the scope of the Alien Tort Statute. Among key claims is the argument that universal jurisdiction doesn’t extend to secondary wrongdoers like corporations, charged with aiding and abetting. (See, for example, Prof. Michael Ramsey’s thought-provoking post in a recent SCOTUS blogsymposium.)

Powerful at first glance, the “aiding and abetting” defense collapses under its own weight. First, for universal jurisdiction, the egregious nature of the violation trumps standard material connections to territory, i.e., the traditional bases of jurisdiction. But it doesn’t work the other way around. The wrongdoer’s standing can’t dictate (or limit) the scope of universal jurisdiction. Complex legal arguments have been made to this effect, and it remains a fundamental starting point.

Second, and more broadly, the nature of the violation is precisely what extends legal responsibility beyond its traditional confines—trans-nationalizing who is liable and where justice can be pursued. We’re talking about political violations—systematic, collective, and coercive. Power differentials and governing authorities figure centrally. This means that accountability is often restricted for survivors of abuse and their relatives. Though rarely stated, the transnational aspect of universal jurisdiction doesn’t just reflect widespread moral disavowal of certain acts; it engenders a shared ethics of global accountability.

Put differently, universal jurisdiction is more accurately non-territorial than extra-territorial. While tethering universal jurisdiction to territoriality is a domestic policy option, it isn’t one well supported in international law. If states have limited universal jurisdiction, pursuing cases only where a direct link to the prosecuting state could be established, this has been a political exception more than legal necessity.

The ATS has long permitted foreigners to seek remedies in U.S. courts for violations committed abroad. The rationale for universal jurisdiction has little to do with territory; it doesn’t really matter who committed the abuses or where they were committed. It’s far simpler: in an interconnected world, when powerful actors commit horrific acts, those most directly affected need a forum where they might pursue accountability. Who will provide it?

A federal criminal court in Switzerland ruled last week that a former Algerian defense minister doesn’t have immunity for war crimes allegedly committed while in office in the early 1990s. Two Algerian refugees residing in Switzerland, along with the Swiss Association against Impunity (TRIAL), brought the complaint against Khaled Nezzar. The ruling is being hailed as a positive step for universal jurisdiction, compared to ongoing setbacks in places like the UK and Spain.

Interestingly, the Swiss court asserted, it would be “contradictory and futile” to fight against human rights violations and accept a broad interpretation of the rules of immunity. The trade-off between human rights and immunity may seem obvious, but the logic is well worth pointing out to hypocritical governments: you can’t have both–either at the level of rhetoric or practice.

That formulation, powerful in its simplicity, may be the most noteworthy precedent set by the case. A former Algerian defense minister and a Swiss federal court take us part of the way, using universal jurisdiction to challenge official immunity. The real test is when more powerful political interests are thrown into the mix. Then what?

The Swiss ruling provides, at the very least, a compelling argument for activists confronting state resistance.

Share this:

What happens, from the perspective of international law and human rights accountability, after authoritarian leaders are ousted? All attention is on the fervor of social revolutions, as people take to the streets, unexpectedly overturning the ruling elite and demanding dramatic change and justice. But as the post-Arab Spring in Egypt, Libya, and Yemen all vividly illustrate, what comes next? When people are compelled to use violence to elicit historic change in governance, should they be held accountable to the same degree as those ruling by coercion?

A democratically embedded rule of law cannot limit accountability to authoritarian leaders and their conspirators. It must extend unequivocally to anyone violating international human rights and humanitarian laws. In Libya, for example, this means members of the militia who committed egregious wrongs, recently granted immunity by a new law in Libya. Thus, Human Rights Watch immediately warned that accountability via universal jurisdiction remains a distinct possibility.

Despite the previous regime’s crimes, aspiring democracies and the Western governments supporting them must pursue accountability fairly and apolitically—prosecuting, as necessary, anyone who cross the Rubicon to violate basic human rights—however seemingly just the cause. It’s a minimum requirement for the rule of law to converge with democratic governance, at least at the level of principle.

Groups may still choose to pursue violence in the name of social revolution, removing entrenched authoritarian regimes; but they should do so knowingly, accepting the full weight of international legal accountability.

Milosevic, Habré, Pinochet, Samphan, Hussein, Montt, Bashir, Fujimori, Taylor. In a trend that has accelerated dramatically since 1990, heads of state often feature centrally in the pursuit of global justice. They top the chain of command, emblemizing the full power and viciousness of a regime, so their prosecution stands as the ultimate challenge to impunity. For Ibrahim Sorie, a legislator from Sierra Leone who attended Charles Taylor’s trial, the dictator’s 50-year verdict affirmed “that impunity is ending for top people.” If the impunity of power fueled those orchestrating the most heinous crimes, holding them accountable represents—like nothing else—the countervailing power of justice.

In this sense, prosecuting heads of state is partly performative (and cathartic), both visual confrontation and ultimate role reversal, as the weak accuse, argue with, and sometimes punish the tyrant. Two gaps can become obscured in the process. One is the selectivity and power that can underlie the pursuit of international justice. As Chris Mahoney writes in The Atlantic, in a corrective to the euphoria surrounding Taylor’s prosecution, victor’s justice is still at play:

The truth is that Taylor is an aberration, the exception that proves the rule of a nascent international justice system that is developing in such a way as to reflect global power, not the ideals of global justice… If you are going to support crimes, even if you’re a head of state, you had best hold on to power. If you can’t, then make sure the world’s great powers are supporting you, because they decide who is prosecuted, and who is not.

Another set of blinders stems from over-emphasizing the role of personality. Not only are individual and social responsibility not one and the same, but human rights crimes can only be individualized up to a point. Yes, someone signs the orders, pulls the trigger, rapes, tortures, or looks the other way. But human rights crimes typically reflect systemic policies and broad structural inequalities that cannot be entirely reduced to single henchmen.

Even when we know this to be the case intellectually, there is something viscerally satisfying about seeing the single head of state on trial, deflated and vulnerable. The risk is that justice becomes overly individualized and retributive, to the detriment of more socialized and restorative approaches.

The South African High Court’s judgment that the government must investigate Zimbabwean officials accused of torture under Robert Mugabe’s regime has been hailed as a “landmark ruling.” It no doubt is. It’s the first successful attempt to apply South Africa’s universal jurisdiction law (the International Criminal Court Act of 2002), bracketing the government’s immediate appeal. As commentators like Naomi Roht-Arriaza note, the case shifts universal jurisdiction’s reach into the Global South, beyond the purview of Western democracies. And it marks an “historic opportunity,” as South Africa comes full circle on the world stage, from a position of human rights pariah-state to a carefully honed image of rights promoter on the continent.

The case also symbolizes, somewhat unexpectedly, the politics of universal jurisdiction. First, it highlights the significance of domesticpolitical cleavages, especially judicial-executive relations. Legal scholar Diane Marie Amann views the case as illustrating the burdens of complementarity, or the limits of states’ willingness/ capacity to investigate and prosecute. A closer look at domestic politics reveals why contending pressures play out the way they do. The independence of the judiciary (here represented by High Court Judge Hans Fabricius), the activism of rights groups like the Jo’burg-based Southern Africa Litigation Centre, the role of the media and of trade unions like the ANC-affiliated Cosatu movement all help to account for why political leaders respond as they do to the demands of complementarity.

Second, the case counters the trend of former colonial powers monopolizing universal jurisdiction; states in the Global South can also promote universal jurisdiction. And it suggests even more tellingly that regional powers, those in closest geographic and socio-cultural proximity to their peers, may be uniquely positioned to pursue transnational justice. As Peter Godwin implies in The New York Times,

Although South African prosecutors cannot try the perpetrators in absentia, the case will still have a galvanizing effect on the situation in Zimbabwe. Anyone there who is under investigation will now risk arrest by coming to South Africa, a country frequented by the Zimbabwean elite for shopping, medical treatment, catching international flights or visiting their vacation homes in Johannesburg or Cape Town… This ruling would have a far greater impact than the current American and European Union sanctions, which impose a travel ban and asset freeze on Mr. Mugabe and his inner circle, who still routinely manage to travel to United Nations gatherings in the United States and Europe by exploiting diplomatic exemptions.

Third, the case represents how universal jurisdiction is making headway in international diplomatic signaling, with activists pressuring foreign governments to pressure their counterparts in Pretoria. We’re used to seeing governments invoke diplomatic relations as an excuse for not pursuing universal jurisdiction. Yet in this case, governments are incorporating universal jurisdiction into diplomacy. No matter that they’re doing so only when it suits their interests. Most intriguing is how the normative, transnational value of prosecuting crimes against humanity is on the rise, inserted into global political discourse.

But back to basics: on March 27, 2007, over 100 people were arrested and then allegedly tortured, repeatedly over the course of several days, in Harare. Their gathering was targeted only because they opposed the ruling Zanu-PF party. For those Zimbabweans, human rights accountability will necessarily be refracted—through the prism of domestic, regional, and international political considerations.

Even if it turns out that this month’s path-breaking ruling in South Africa is remembered mostly for its symboliceffects, the alternative of unchallenged impunity remains far worse. And, besides, so much of reality is constituted by groups adopting, discussing and contesting the meaning of symbols. That’s not a bad thing; it’s just part of the uncertainty (and possibility) of political life. It’s also why the real power of the South African case may be indirect, as people are moved into action.

In the last few weeks, Charles Taylor was convicted of war crimes by an international tribunal, and South Africa has had its universal jurisdiction laws put to the test. In Libya, a law was passed giving immunity to members of militias, while El Salvador’s government favored nationality over universality in denying extradition to Spain. The Spanish government, in turn, was unwilling to confront its own human rights crimes, so claimants turned transnationally to courts in Argentina.

These cases, which I’ll address in coming posts, can be variously interpreted—as signs of progress or politicized justice or both. Yet questions of international justice need not be transcendental. Are ordinary people being empowered? Are those who abuse power being challenged and held accountable? International justice and human rights are always partial and incomplete projects—instruments of social change in an imperfect world. Activists know this, which is why they celebrate the small victories while fixing their sights, audaciously so, on a longer arc of progress.

Most importantly, the incident reveals a crucial and ongoing gap in international law: the 12 million or so stateless people that, according to the UNHCR, live in every region of the world and yet remain invisible. It’s no wonder stateless people resort to universal jurisdiction—absent open, legal spaces where they can pursue justice and claim their internationally recognized human rights. What would we expect from people with grievances, real or imagined, who are denied access to national and international tribunals?

Universal jurisdiction in foreign courts, for all its imperfections, gives legal haven to those whose national identities remain unbounded by statehood.

Syria’s leaders are unlikely to be tried by the International Criminal Court. Syria isn’t a party to the Rome Statute, and Russia and China will block a Security Council vote otherwise needed to trigger action by the ICC Prosecutor. No wonder that a growing number of voices keep mentioning the possibility of universal jurisdiction, if a Syrian official known to have committed egregious abuses travels to a country willing and able to arrest him. It may be a long shot, but it threatens to hold Syria’s leaders accountable for human rights abuses. Another possibility is a regional war crimes tribunal under the auspices of the Arab League.

Meanwhile, just days before a negotiated ceasefire is to enter into force, Bashar al-Assad is doing what repressive leaders do: he is systematically squashing—eliminating, where possible—his opponents, while he still can. In this coercive campaign, calls for universal jurisdiction don’t hurt; they signal solidarity. But threats of unlikely punishment also won’t change the calculus of state leaders prepared to use violence to normalize their rule.

Part of Syria’s tragedy is that from the outside-in, we divide people easily into camps; from the inside, the view is far more blurred and historically messy. I recently received an email from a Syrian friend who is pro-Assad. Strong and intelligent, she always bought into the regime’s propaganda machine, dutifully hanging a photo of the late Hafez al-Assad in her Damascus apartment. And yet despite the external displays, to me her fear was palpable. My friend wouldn’t condone the indiscriminate violence Assad’s forces have unleashed in Homs or Damascus, though she continues supporting (and excusing) the regime for a mix of reasons too complicated to unravel.

The point is that hard-hitting political negotiations and legal accountability, including via universal jurisdiction, should remain the preferred routes for addressing violence in Syria. On the ground, the view is too convoluted for quick fixes and interventionist gambles, well meaning or not. Yes, the stakes are high and innocent lives must be protected, but the context also justifies the precautionary principle identified in the Responsibility to Protect doctrine: treading carefully in contexts where “halting or averting the atrocities or suffering” seems improbable.

Until this past week, the United States was the only country where universal jurisdiction has been used in civil human rights cases. This week, a Dutch court joined it, awarding one million euros to Ashraf al-Hazouz, an Egyptian-born Palestinian doctor who was raised and tortured in Libya, accused with five Bulgarian nurses of deliberately infecting 426 children with HIV/AIDS in a Benghazi hospital in 1999.

The medical workers were jailed for eight years, sentenced to death, tortured and beaten, until they issued false confessions. In a diplomatic deal, brokered by France and the EU, the prisoners were extradited to Bulgaria, where they were pardoned and released in 2007. The doctor moved to the Netherlands and filed suit against twelve Libyan civil servants who had overseen his torture. He expects the new Libyan regime to pay compensation and, most importantly, admit wrongdoing.

In all, it’s a staggering account, marked by a series of transnational convergences:

Health care professionals who left their national homes seeking work abroad. Poor hygienic conditions and mismanagement leading, tragically, to hundreds of children being infected with HIV/AIDS. Unprecedented social protest, as the children’s families demanded answers and compensation from a repressive state. A government that responded by accusing foreign medical workers, arresting and torturing them, then using their confessions to sentence them to death by firing squad. A national leader who tit-for-tat defended holding foreigners in Libya, just as Libyans were in Scotland for the Lockerbie case.

With over 60 of the children now dead, the survivors and their families continue meeting as a group. The recent violence in the country has meant that some of them have not had adequate access to medications. Compensation given to the families as part of the deal to extradite the six foreigners wasn’t enough to appease them. Let’s hope their claims aren’t forgotten.

Universal jurisdiction was applied in the Netherlands because al-Hazouz resides there, and torture was at stake. But what of the structural forms of violence that permeate the case (linked to migration and global labor, access to healthcare and international diplomacy)? State torture is considered so hideous partly because it entails an intimate betrayal, the intentional use of pain by state agents for political ends. And as this case reminds us in full detail, the quest for information is a false rationale in the exercise of torture. Elaine Scarry attests in The Body in Pain:

The idea that the need for information is the motive for the physical cruelty arises from the tone and the form of the questioning rather than from its content: the questions, no matter how contemptuously irrelevant their content, are announced, delivered as though they motivated the cruelty, as if the answers to them were crucial.

Pain and truth-seeking runs through this fascinating case, connecting the medical workers and patients, the torturers and the tortured, survivors and the state. In the end, the case is about far more than the torture of foreigners, suggesting interconnections that fall short of erga omnes obligations and never make it to forums of universal jurisdiction–but are no less worth probing.

First, Paisley sets up a classic ethical dilemma, portraying international justice as punishment of individuals and peace as a collective good. Then there’s the well-meaning neocolonial discourse—the language of non-Western tribes, local proverbs, and age-old conflicts—which can seem culturally attuned and deeply informed. Finally, and potentially most devastating, is a warning: in conflict-ridden societies, pursuing justice can backfire and cause greater violence. In this scheme of things, international justice is depicted as either futile and naïve or costly and dangerous.

Critics like Paisley are correct that pursuing international justice can lead to conflict. But demands for justice are not causes of conflict, only an excuse for rulers requiring acquiescence. When political leaders respond to claims for justice with violence, they’re ruling coercively. Post-conflict negotiations, including in places like South Africa and Northern Ireland, always entail a delicate balancing act between alternative imaginings of peace and justice, not crude privileging of any single vision.

These debates are, of course, partly semantic. If peace is defined as stability and the absence of violent conflict, the choice between high-possibility deaths or low-probability convictions seems false. But the angle shifts dramatically when justice is understood as a social process, and peace is valued in terms of its quality and purposes.

Paisley’s rhetoric—the insistence on peace at all costs—is reactionary and intransigent. It won’t entirely resonate with people caught in systems of domination and daily humiliation, unwilling to sell out their political-legal aspirations in exchange for a fictionalized peace.

The case is loaded with symbolic value. Habré has commonly been referred to as “Africa’s Pinochet,” another high-profile former dictator being sought by European courts on the basis of universal jurisdiction. And in the current historical moment, when early post-Pinochet legal ambitions have been scaled back (including in Belgium), proponents and critics of universal jurisdiction are looking to the ICJ’s judgment for support.

The debate over whether an obligation to prosecute or extradite exists, important as it is, obscures alternatives: once someone is indicted for an international crime, based on substantiated social claims, what exactly is supposed to happen absent prosecution or extradition? We shouldn’t fool ourselves: most often, the failure to prosecute amounts to official forgetting.

The case before the ICJ is intriguing in part because various alternatives for prosecution were defined, including regional options supported by both the African Union and international donors, which would bypass more controversial extradition to a Western capital. And yet Senegal’s leaders resisted.

On some level, Senegal’s refusal to extradite seems rooted in everyday politics, close to the ground and bureaucratic—caught up in personal loyalties and survival strategies. These ordinary exchanges can matter as much if not more than the “high politics” of foreign relations or grand statements about state sovereignty and the primacy of peace.

If Senegal’s resistance to prosecute or extradite Habré reflects the mundane circumstances of harboring him for decades, how can we expect Chadians demanding justice to walk away from their memories of atrocity?

Last week, the U.S. Supreme Court surprised onlookers when it ordered the parties in the Kiobel Case (see my post below) to rebrief the case for rehearing. Most importantly, it shifted the question before it, from corporate liability to the possibilities of universal jurisdiction—revisiting the extra-territorial reach of the Alien Tort Claims Act (1789), used to prosecute crimes committed abroad in U.S. courts:

Whether and under what circumstances the Alien Tort Statute … allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

Universal jurisdiction is politically threatening, depending on the nationalities at stake and the status of foreign relations. But when powerful corporations are thrown into the mix, themselves embroiled in human rights conflicts, the stakes are potentially explosive. Was the Supreme Court dodging the issue of corporate responsibility for human rights crimes, returning to first principles, or both? Having punted the issue, corporate human rights crimes committed abroad are off the U.S. Court’s agenda for now.

The Spanish Supreme Court’s recent acquittal of Judge Baltasar Garzón reveals how things are not always what they appear to be—and underlying rationales can be as significant as final decisions. Even though the Court didn’t find Judge Garzón guilty, its politicized reasoning challenges human rights accountability and vindicates Garzón’s pursuit of universal jurisdiction. Here are some highlights from the Court’s decision:

First, the Court made it clear that those seeking truth for past human rights crimes should look elsewhere. The Spanish criminal justice system, the Court declared, is not in the business of truth-seeking, only of prosecuting living individuals. Disregarding its own responsibility and complicity, the Court differentiated between history and justice, between judges and historians, pitting historical and forensic truths against one another.

Second, the Court drew a stark line between international and domestic law, opting for a nationalist stance. Garzón’s key error, the Court said, was labeling the acts in question “crimes against humanity,” an obvious attempt to bypass the 1977 national amnesty. The Court would hear nothing of it, insisting that domestic laws trump international standards. (In reality, crimes against humanity may just be too loaded a term, an ugly marker for political crimes that the Spanish Right still excuses.)

Third, at the crux of the Court’s argument was a sanctimonious defense of the 1977 nationalamnesty. Placing the amnesty at the center of a near-mythic transition to democracy, the Court stated, almost nostalgically,

The fundamental idea behind the ‘transition,’ so lauded nationally and internationally, was to obtain peaceful reconciliation among Spaniards; both the Amnesty Law and the Spanish Constitution were essential milestones in that historic development. (my translation)

The amnesty, according to the Court, reflected the will of the people, a necessary compromise across the ideological spectrum that the judiciary can’t overturn. The rationale is wrapped in the language of democracy, nostalgia, and futility.

And yet it’s difficult taking at face value the Court’s claims. These are the same justices who agreed to prosecute Judge Garzón, in response to a handful of extremist groups and against the advice of legal experts. It’s the same Court that already barred Garzón from the bench for 11 years, after a widely criticized trial. And it’s a court that’s acting more like the inheritor of Franco’s legacy than a guarantor of contemporary democratic governance.

The reasoning is strangely reminiscent of authoritarian legalism, an insular and privileged space closed off to social opponents. The Court’s rationale in the latest Garzón case somehow manages to perpetuate that cycle of abuse. Masquerading as an acquittal, it slams the door on universal jurisdiction and legal accountability.

For an interesting overview of the case and reactions, see posts by dwkcommentaries.

What happens when a multinational corporation colludes with a repressive regime to kill and torture opponents of oil exploration? This is partly the question in Kiobel v. Royal Dutch Petroleum, which opened yesterday before the U.S. Supreme Court.

The civil lawsuit is brought by Esther Kiobel, on behalf of herself, her late husband Dr. Barinem Kiobel, and ten others (including writer and activist Ken Saro-Wiwa) who were killed in the Niger Delta’s Ogoni region during the early 1990s. The claim is that Royal Dutch Shell Petroleum Company, one of its subsidiaries, and a British firm were all implicated in grave human rights violations—aiding and abetting the military regime in torture and murder.

Human Rights First, which has filed an amicus brief in the case and is broadly active in combating impunity, described how universal jurisdiction intersects with ‘corporate responsibility’:

The idea that non-Americans should be able to use U.S. courts to sue non-Americans for international law violations committed abroad is not new… Universal jurisdiction is not only a well-established practice in international law, it is required for grave breaches of the Geneva Conventions, such as murder and torture, and by the U.N. Convention against Torture…

If corporations are people for purposes of rights, they should also be treated as people for purposes of responsibilities. And requiring them to be responsible for complicity in murder and torture is the least our judicial system should demand.

Corporate responsibility for human rights crimes is about more than (re)drawing the boundaries between rights-holders and duty-bearers. It is, minimally, about having to answer publicly for alleged social harms. In this sense, universal jurisdiction can play an essential role, giving claimants and the accused an official, mediated, seemingly depoliticized space in which to exchange views.

As oral hearings proceed in the long-awaited trial, it’s worth remembering that universal jurisdiction’s power lies partly in requiring corporate and state leaders to confront—and even communicate with—their accusers. It may not seem like much, but it beats the arrogant silence of impunity.

The UN Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Richard Falk, released a statementlast Tuesday on Khader Adnan — the Palestinian who garnered global attention with a 66-day hunger strike, protesting his arbitrary detention and Israel’s policy of “administrative detention.”

Among other things, Falk suggested that Adnan’s inhumane treatment could be “subject to international criminal accountability, including through universal jurisdiction.” Later in the day, the Israeli government agreed to release Adnan ahead of schedule; and the 33-year-old ended his hunger strike, still shackled to his bed.

The extent to which Falk’s statement helped secure Adnan’s release is difficult to gauge. Adnan’s imminent death, and the unrest to follow, certainly shaped the government’s calculus. Regardless, Falk’s intervention—like the hunger strike itself—exposed alternative strategies of resistance and accountability.

Rather than official diplomats and international courts taking center stage, Adnan opted for a symbolically charged hunger strike. Falk, an independent expert appointed by the U.N. Human Rights Council, crucially reframed the debate: defining Adnan’s treatment as internationally illegal and threatening punishment in foreign courts.

When diplomatic channels are blocked, and rights abuses persist, societal forces can take decentralized and no less effective action. Occasionally, the results are dramatic, and an individual life is spared.

It’s no secret that universal jurisdiction is selectively applied, often politically driven. In a provocative article last month in the Texas International Law Journal, Ariel Zemach takes this argument a step further, pitting universal jurisdiction against the well-entrenched principle of equality before the law.

While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction’s claim to legitimacy.

It’s an important contention, potentially more damaging than usual critiques—linking itself to powerful discourses of equality and legalism.

Yet the argument misses a subtle distinction: universal jurisdiction is a problem of authority; equality before the law is a principle of consistency. Universal jurisdiction centrally engages who has the authority (and responsibility) to prosecute certain political crimes. Equality before the law is about who is to be prosecuted (and how they are to be treated).

What’s more, equality before the law is always a partial myth, and therefore ultimately weak grounds for limiting universal jurisdiction. In the end, we still need to weigh alternatives carefully, to consider the value of universal jurisdiction as political aspiration and legal imperfection—a tool for real-world struggles—versus legalism’s idealized promises of order and authority.

Share this:

Justice delayed may be justice denied, as the popular maxim says, but sometimes it isn’t. At least in the world of human rights, legal justice can proceed at despairingly slow speed, only to have circumstances change quite remarkably.

On January 26, a Guatemalan court charged Ríos Montt with genocide and crimes against humanity—the first former head of state in Latin America to face such accusations. Stunningly, it was 30 years after the crimes had been committed, and following a decade-long legal battle by Guatemalan citizens in Spanish courts, under the province of universal jurisdiction.

Even after Spanish authorities issued an international arrest warrant in 2006, Ríos Montt still managed to win a seat in Congress in 2007, enjoying immunity until this past January 14. Two weeks after his immunity lapsed, the world seemed to turn upside down, as Ríos Montt was placed under house arrest, and hundreds filled the streets outside the courthouse to witness accountability.

In a cruel irony, on February 9, Spain’s top champion of universal jurisdiction, Judge Baltasar Garzón, was sentenced and suspended from the Spanish bench for 11 years. Paradoxically, Garzón’s judicial activism helped open the door for foreign claimants in Spanish courts—which, in turn, served as a catalyst for legal change in Guatemala.

The intersecting paths point to this: if Judge Garzón takes his appeal to Spain’s Constitutional Court or the European Court of Human Rights, today’s justice denied may be just another long delay. Yet is this good enough?

In retelling histories of protracted justice, it’s tempting to focus on the endpoints. But what of the lives compromised in the interim, between the time justice is suspended and an uncertain future? For those most centrally concerned in struggles over accountability, how are they to reconcile the hope for justice with the reality of the here and now?

Universal jurisdiction is necessary to ensure that there is no hiding place for the world’s most brutal criminals. The arrest warrant for Saif Gaddafi was issued by the ICC, but had he fled to the UK, could he have been tried there?

This intriguing language of chasing dictators, with nowhere to escape, often frames defenses of universal jurisdiction. In some ways, it reveals an embedded imagery of hunting, of criminals as prey. It also feeds into critiques raised by scholars like Makau Mutua and Mahmoud Mamdani, that human rights discourse inadvertently evokes images of savior and savage. If this is even partly true—and this is an open question—is there a more productive way of depicting the benefits of universal jurisdiction, of moving beyond the rhetoric of hiding?

Universal jurisdiction is potentially activated the moment impunity is confirmed. When Yemen’s parliament passed on January 21, an amnesty law granting President Ali Abdullah Saleh immunity for crimes committed over three decades of autocratic rule, they disregarded the country’s constitution and international obligations. More to the point, they shut out the demands of tens of thousands of Yemeni protestors, who stood their ground last year on the streets of Sana’a, calling for the president’s ouster—and eventual accountability. As Human Rights Watch warned parliamentarians,

The granting of immunity would not prevent courts in other countries from prosecuting serious human rights crimes in Yemen under universal jurisdiction laws…. Even if the Yemeni parliament grants immunity, the law will not hold water abroad….

Yesterday, just two weeks after closing his amnesty deal, Saleh found himself in a hotel in New York City, his temporary haven while seeking medical care. The former leader was met by two dozen loud Yemeni-American protestors, contesting his impunity and calling for his expulsion to The Hague.

Those justifying the amnesty view it as necessary, or the price of Saleh stepping down and averting a return to civil war. But the amnesty may be the beginning not the end of the story, as Saleh discovers that he can still be tried elsewhere and ongoing injustice breeds further conflict.

It is a mistake to see Judge Garzón as the main target of the lawsuits. His personal ordeal aside, the trial is a means of silencing those who’ve dared give voice to memories of political abuse and those who might pursue universal jurisdiction—the judge’s global trademark. The suits threaten, credibly, to take down an internationally renowned judge. That’s why foreign observers are on hand and Spain’s hard-fought democratic credentials are at stake.

Governments often prefer deporting foreigners accused of international crimes than trying them on the basis of universal jurisdiction. Their rationale is usually practical, focused on the procedural and political costs of holding trials far away from where the crimes occurred. These are real concerns. But the penchant for deportation may also reflect a more complicated desire: constructing the image of a national space disconnected from heinous political crimes, whilebanishing suspects to a jurisdiction more likely to inflict punishment.

Note a couple of cases from the last few weeks:

Léon Mugesera was detained in Québec and is awaiting deportation to Rwanda, where he’s wanted for using vitriolic hate speech to incite genocide; he’s spent much of the last 18 years battling the legal system and resisting deportation from Canada.

Also this month the European Court of Human Rights ruled that Britain can’t deport Abu Qatada to Jordan where he’s wanted on charges of terrorism—not because of well-founded fears of torture and ill-treatment, since diplomatic assurances have presumably guaranteed against that—but because a trial may rely on torture-gathered evidence. If Jordan convinces Britain otherwise, the ECHR could overturn its decision on appeal.

In legal systems constrained by high evidentiary thresholds or weak rule of law, even those presumed guilty of international crimes can escape severe punishment, triggering public outcry and a request for cross-border transfer. In such cases, extradition isn’t merely a regulated relocation of authority, or a shift to the jurisdiction best situated for delivering justice. It can be a kind of forum shopping by states, intent on placing suspects in the jurisdiction most likely to mete out punishment.

Historical memories following mass atrocity are difficult to confront. So when politicians present a simplistic trade-off—between moving on to better days or becoming mired in a turbulent past—survivors and their relatives face an uphill quest for accountability.

Spanish governments of different ideological stripes have paid lip service to truth-telling, but they’ve steered clear of painful investigations. No wonder Judge Baltasar Garzón was suspended when he opened a case into the country’s vicious civil war and Franco’s dictatorship. Investigating similar crimes, on the basis of universal jurisdiction, was fine when it dealt with human rights in Latin America and elsewhere; but in a classic display of exceptionalism, Spanish crimes are themselves off limits.

Into the mix steps Argentina, a country that underwent official truth-telling as part of its democratic transition and has had cases brought against its citizens in European courts. In April 2010, Spain’s Association for the Recovery of Historical Memory joined a dozen human rights organizations in Argentina (with the Grandmothers of the Plaza de Mayo as co-plaintiffs), filing a lawsuit on behalf of the relatives of victims residing in Argentina.

This month, the case has heated up as a federal judge in Argentina asked Spain for specific information about Spanish military officials, including:

The names of military officers involved in the Franco regime; lists of victims of forced disappearance and summary execution; lists of children who were stolen from their parents during the dictatorship; and the names of companies that allegedly benefited from the forced labour of political prisoners.

In democracies, people must be minimally free to demand the truth. Absent this, such demands can become transnationalized and move to other forums. As Argentine lawyer Beinusz Szmukler contends, sometimes truth-telling must simply be done from afar:

We want an in-depth investigation, to determine the truth and establish who was responsible. If Spain does not do it, we will do it here.

The dispute over whether Sudanese president Omar Hassan al-Bashir should be arrested if he returns to Kenya is a case study in the politics of universal jurisdiction—and its ripple effects. Here’s the chronology:

March 2009: The ICC issues an arrest warrant for al-Bashir, charging him with war crimes, genocide, and crimes against humanity in Darfur

July 2010: The ICC follows up with state parties to the Rome Statute (including Kenya), urging them to cooperate; the African Union meanwhile calls for the arrest warrant to be suspended—on the grounds that seeking justice prematurely will undermine peace and the ICC is biased in its targeting of African dictators

August 2010: al-Bashir joins other dignitaries in Kenya on the occasion of the country’s new constitution

November 2011: The High Court rules that Kenya’s government is obligated to execute the arrest warrant if al-Bashir steps foot in the country

December 2011: Kenya’s Attorney General files an appeal; and despite assurances to Sudan’s government that the finding will be overturned, Sudan expels Kenya’s ambassador

That local rights organizations would seek cooperation with the ICC is of course unsurprising. Neither is the government’s stance that the arrest warrant undermines bilateral relations. More noteworthy, for what it highlights about clashing international norms and state sovereignty, is the government’s claim about universal jurisdiction—that it doesn’t apply because al-Bashir enjoys immunity as a sitting head of state.

Far more intriguing, though, is the Kenyan High Court’s insistence that the government not interfere with its judgment. There’s more here than just a global-regional tug of war, or Kenya’s judiciary taking sides between the ICC and the AU. The Kenyan court seems highly attuned to asserting its institutional standing at home, taking its place in the structure of democratic governance.

Regardless of how it plays out, the controversy over universal jurisdiction is serving as a catalyst for domestic political struggles, having little per se to do with punishing al-Bashir but carrying high stakes for ordinary Kenyans.

Agenda-setting is a form of power, and universal jurisdiction is increasingly on the political agenda. This month alone, a range of voices invoked the idea of applying universal jurisdiction across the Middle East:

At an event on International Human Rights Day (December 10), opposing the planned closure of Camp Ashraf in Iraq, Alan Dershowitz referred to universal jurisdiction as a way of holding the United States and others accountable—for failure to protect civilians and prevent international crimes. Alaa Shehabi commented on a recent human rights report by the Bahrain Independent Commission of Inquiry, noting that universal jurisdiction was an option for those potentially escaping justice in Bahrain. And Human Rights Watch in a new report on Syria referred to states’ responsibility in prosecuting international crimes under universal jurisdiction.

In each case, universal jurisdiction was placed on the agenda as a secondary matter: only when national courts in the home country are unable or unwilling to meet their international legal obligations. The putative intent is to support, not replace or compete with, traditional modes of seeking justice, i.e., the principle of complementarity.

But what about the “hidden face of power,” what Steven Lukes spoke of long ago when he said that power encompasses both formal decision making and agenda-setting? This third face of power exerts its influence more subtly and invisibly; it assigns normative connotations and defines collective values.

It also begs us to ask whether universal jurisdiction ever reinforces global power imbalances or substitutes individual punishment for complex patterns of historical responsibility. Or worse yet, do its interlocutors, who inevitably hold complicated political agendas, always speak for the people they’re seeking to defend? These issues are worth considering, even while we celebrate the possibility of exposing state-sanctioned violence and inhumane treatment.

As of today, an agreement between Iraq and the United Nations provides for resettlement of Ashraf’s residents, with the controversy now revolving over whether resettlement is really voluntary or forcible. See also my earlier post on Ashraf.

As an alternative to universal jurisdiction and other international justice mechanisms, the Kuala Lumpur War Crimes Commission has prosecuted Bush and Blair for international crimes in the Iraq war. Following two years of investigation and four days of hearings, staffed by well-known participants (including Francis Boyle serving as a prosecutor and Arundhati Roy as president of the tribunal), the tribunal reached a unanimous verdict last week, finding both former heads of state guilty.

Distinguished legal scholar Richard Falk offers a bold analysis, well worth reading, of the latest civil-society tribunal and its significance for international law. Juridical events such as these, Falk says, reveal what no one admits:

The world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross injustice. In this regard, there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as “law”? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny – international institutions – are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law…. Beyond this, we should not neglect the documentary record compiled by these civil society initiatives….

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power.

The European Court of Human Rights has at last issued a judgment permitting the extradition of a genocide suspect to Rwanda (Ahorugeze v. Sweden). The case is important because similar extradition denials are quite common across Europe, although—and here is the key—extradition denials don’t typically lead to trials on the basis of universal jurisdiction. The drive for justice somehow fizzles out, once the case against extradition is won.

Refusals to extradite are most often based on the presumed likelihood of human rights violations, especially fears of unfair trials or of ill-treatment and persecution. But what happens when a human rights rationale leads to a denial of extradition, which in turn only reinforces impunity? And are refusals to extradite always driven by evidence of what awaits a defendant, or do cultural presuppositions filter into the decision? These double standards now need to be brought to light.

Two Spanish voices reflected recently on the value of using universal jurisdiction in seeking justice for Tibetans:

For some reason International Law and Universal Jurisdiction…is never or rarely mentioned in the Tibet debate…. We have been preparing and seeking justice for the Tibetan victims of old and recent crimes in the Spanish Courts based on Universal Jurisdiction for more than ten years…. We believe that all democratic institutions, laws, human rights organizations, tribunals, national and international courts must be USED (not just talked about or criticised) to combat impunity and defend the dignity of the victims.

We don’t know what it is, but fear of the big powers or ignorance are never good excuses to refrain from using the privilege of the law that free countries have at their disposal. In this sense, the premises of Universal Jurisdiction are based on the legal and legitimate principle of justice (not of vengeance) of the Tibetan victims, and constitutes [sic] a personal and untransferable right of theirs. Furthermore the argument that Spanish justice interferes with negotiations (or better to say “talks about talks”) sustained by China and some politicians in Dharamsala is in hindsight a misguided and erroneous one, or at best speculative.

Thoughts of Tibet raise some difficult questions confronting universal jurisdiction: to what extent well-founded critiques of international law justify foregoing universal jurisdiction, and why exactly some cases remain invisible while others take the spotlight. Meanwhile, those seeking justice grow rightfully impatient with the endless debate and inaction.

Share this:

Universal jurisdiction, as traditionally understood, is tied up in notions of territoriality. The very question of jurisdiction in international law is territorially derived, depending mostly on where a crime was committed or where an alleged perpetrator or victim holds nationality. So when states apply universal jurisdiction, bypassing the traditional bases of jurisdiction, extra-territoriality is said to be at play.

Yet in an interesting report issued this month by the Nautilus Institute on international law and dual-use nuclear commodity smuggling, Anthony Colangelo (a law professor at SMU) argues that:

the prescriptive reach of universal jurisdiction is not really extraterritorial; rather, it comprises a comprehensive territorial jurisdiction, originating in a universally applicable international law that covers the globe. Individual states may apply and enforce that law in domestic courts, to be sure, but its prescriptive scope encompasses all territory subject to international law, i.e., the entire world.

Note the contrasting imagery. The idea of extraterritoriality takes traditional state sovereignty as its default starting point—universal jurisdiction is treated as a departure from the norm. This hang-up with territory and physical geography may be descriptively accurate of the current international system; but as Colangelo suggests, it’s prescriptively inadequate. Universal jurisdiction begins more soundly from the premise that international crimes can be applicable anywhere. To be sure, this alternative geography requires a social conception of space: recognition that what makes some crimes international is the reprobation they evoke, not whether their effects spill over across borders as would a material pollutant.

If extraterritoriality is depicted with lines linking states to one another, universal jurisdiction would be more like an all-encompassing sphere, to some extent transcending the inter-state system. These represent two very different conceptual maps, with varying implications for how we see the world of universal jurisdiction.

Share this:

Guo Xiaomei, China’s legal adviser to the Chinese Mission to the UN, presented to a General Assembly committee last week her country’s succinct position on universal jurisdiction. First, there’s no consensus on the meaning of universal jurisdiction (other than for piracy); jurisdiction remains territorially driven. Second, immunity for political leaders and diplomats trumps any notion of universal jurisdiction. Third, the obligation to “extradite or prosecute” is linked to specific treaties; there’s no general obligation to claim universal jurisdiction. Fourth, political abuse of universal jurisdiction is a violation of international law and state sovereignty. All told, she concluded:

We hope that a common understanding can be found through in-depth exchange of views. Pending such a common understanding, all states should refrain from exercising jurisdiction over another state in the name of so-called universal jurisdiction.

China is not alone in these critiques. In fact, Sri Lanka’s Permanent Representative to the UN made a similar statement last week, after a civil lawsuit was filed against its own deputy permanent representative to the UN for alleged torture in Sri Lanka. China’s position is a classic denial of how international human rights norms challenge traditional notions of state sovereignty. But it’s also a rhetorical gambit, premised on the assumption that other governments’ fears of universal jurisdiction will in the end stall the debate.

Amnesty International released on October 5th a very useful report, Universal Jurisdiction: A Preliminary Survey of Legislation around the World. Among other things, the report finds that about three-quarters of countries have taken legislative steps to pursue universal jurisdiction, defining at least one international crime: war crimes, crimes against humanity, genocide, and torture. Still, inconsistencies in how international crimes are defined and other gaps in domestic law represent an ongoing “impunity gap,” which limits universal jurisdiction in practice. Not to be overlooked are the report’s two annexes, charting which countries have defined which international crimes in their national law and detailing the relevant legislation. For those who believe universal jurisdiction is limited in scope, the report reveals a far broader range of possibilities.

Even more interesting than the report itself, though, is what happened the next day. On October 6th, Israeli opposition leader Tzipi Livni visited London, marking the first senior Israeli politician to do so since Britain’s universal jurisdiction law was changed last month. Livni’s visit was especially noteworthy since in 2009, in a highly publicized episode, she had cancelled a visit to Britain, after an arrest warrant was issued for her role in Operation Cast Lead. (See my earlier post on this.)

As the British and Israeli governments celebrated Livni’s arrival, word got out that Foreign Secretary William Hague had designated the visit a “special mission,” effectively giving Livni diplomatic immunity. So when two days earlier, a Palestinian police officer filed a complaint against her, on behalf of his brother killed in Operation Cast Lead, the legal process never actually made its way through the new channels.

Those most consumed by these events have hoped for (or feared, depending on their perspective), one thing: the end of universal jurisdiction. But beyond Britain and Israel, the view is far less certain. As Amnesty International’s global survey shows, 145 states have at least laid the legal groundwork for prosecuting international crimes. However partial and contested, universal jurisdiction now has its own political momentum—not to be so easily restrained.

Granito: How to Nail a Dictator is the new documentary by filmmaker Pamela Yates, who also directed When the Mountains Tremblealmost 30 years ago. It recounts the story of a genocide case against the Guatemalan military, currently being argued before the Spanish National Court on the basis of universal jurisdiction. The intriguing twist is that the 1982 documentary features as evidence in today’s legal trial—an instance of art shaping life shaping art. Granito refers literally to “a small grain of sand”; and the film’s message is that each granito, however small, can contribute to holding dictators accountable.

While the film is attracting very favorable attention from human rights organizations and in the film-festival circuit, a recent review by Paul Brunick in The New York Times labels the film politically shallow, portraying a “simple moral conflict between dictators and freedom-loving peasants.” For those of us who haven’t yet seen the film, it’s impossible to draw conclusions. But it is worth asking whether international justice can be romanticized or sensationalized in counter-productive ways. Surely, many filmmakers depicting human rights themes are looking to mobilize and provoke audiences (who can be indifferent, uninformed, or hostile), not just preach to the converted. Is this best done by presenting the complexities of prosecuting genocide in foreign courts or by revealing moral outrage in the face of genocide? These are artistic and political choices, reflecting a filmmaker’s purpose and target audience. What’s clear is that Brunick’s review has only piqued our interest in viewing, and grappling with, Granito.

Britain altered the law on universal jurisdiction today so that arrest warrants must be approved by the government’s chief prosecutor, rather than by judges. The change is being portrayed as a minor one, almost a technicality. According to Justice Secretary Kenneth Clarke in a Ministry of Justice statement released today,

We are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution.

‘These changes are essential to ensure we do not risk damaging our ability to help in conflict resolution or to pursue a coherent foreign policy.

The intent, according to the government, is to assure that arrest warrants are not issued for political reasons and foreign relations remain unharmed. But how is taking away the judiciary’s independence not political? Even if universal jurisdiction has been abused in Britain, is there any guarantee that ‘foreign relations’ will not filter into the chief prosecutor’s decisions about which cases to pursue? The government should call the legal change on universal jurisdiction what it is: a political escape clause.

Last month Mark Ellis, executive director of the International Bar Association, had a thoughtful op-ed in The New York Times. Inspired by the British foreign secretary’s comment that perhaps Muammar el-Qaddafi should retire with impunity–notwithstanding the ICC’s arrest warrant this past June–Ellis contrasted the world of jurists and diplomats, what he describes as “collisions between the international justice system and state diplomacy”:

Unfortunately, contradictions and competing agendas undermine the credibility and effectiveness of prosecutors and diplomats alike.

What good is the deterrent effect of criminal prosecution if a diplomat can hold out the prospect of immunity? What good is a diplomat’s promise of immunity if a court can undo it? How fair or credible is a system of justice that is restricted to a politically determined jurisdiction? If the I.C.C. is to provide uniformity in the exercise of jurisdiction over international crimes then why indict one leader for atrocities while ignoring the excesses of another? And ultimately, how do we weigh the price in suffering between judicial accountability and diplomatic compromise?

Diplomacy is about negotiating interests across borders. Justice is about the application of legal principles within jurisdictions. Diplomacy is based on power relationships and relies on nuance, discretion, perceptions and, most important, negotiation. The best diplomacy is often invisible. In contrast, the best judicial processes are based on facts, principles, rigorous adherence to procedures, and above all, transparency.

Despite these differences and potential incompatibilities, diplomats and judicial authorities need to start looking for points of coordination. As Qaddafi awaits his fate, the time has come for diplomats and jurists to begin exploring common ground for the common good. (August 11, 2011)

Ellis’ call for common ground should be taken seriously, but what exactly would it entail in practice? What precisely are the points of coordination? The questions raised and contrasts drawn are provocative though perhaps overdrawn. Is deterrence the principal goal of a system of justice? Are diplomacy and prosecution really so distinct? Don’t power relationships shape the law, just as norms occasionally reorient interests? Finding common ground assumes two overlapping spheres, a fixed conceptualization of political interests on the one hand and judicial processes on the other. Perhaps if we saw politics in the law and the value of legal regularities in politics we might get closer to an otherwise elusive common ground.

Students of human rights are familiar with the ‘boomerang effect,’ depicted by Margaret Keck and Kathryn Sikkink in Activists beyond Borders(1998): states that initially resist international pressures risk greater future pressure, as domestic activists enter into powerful transnational alliances. The popular metaphor also applies to transnational judicial relations: faced with a climate of impunity, some nationals turn to foreign courts for justice; the publicity of foreign trials, in turn, can produce unexpected effects back home.

These dynamics are currently playing out in Guatemala, where General Héctor Mario López Fuentes–who headed the armed forces under Ríos Montt’s reign–will be tried for genocide and crimes against humanity, including massacres of Mayan (Ixil) indigenous peasants in 1982 and 1983. It’s the first time in the country’s history that a member of the armed forces will be tried for genocide.

The sequence of events is telling. Throughout the 1990s, the Attorney General’s local office in Nebaj, Quiché was inundated with denunciations of wartime abuse. After having their access to justice blocked in Guatemala, local survivors (including Nobel Peace Prize winner Rigoberta Menchú) took their case to Spanish courts. In 2006, Guatemala’s Constitutional Court balked at Spain’s request that Ríos Montt himself be extradited. More details, including López Fuentes’ role, emerged when the U.S. National Security Archive released the “Guatemalan files” in 2010.

But still nothing happened, until December 2010 when a new attorney general with ties to international human rights organizations pushed the cases forward. Though ex-general López Fuentes had been living quietly in a Guatemala City suburb, a warrant was issued, leading to his arrest this past June. The 81-year-old general and his supporters maintain, predictably, that it is unfair to prosecute López Fuentes, given his age and poor health.

It took over a decade, but along the way universal jurisdiction gave victims vital access to a legal forum where they could make their claims. And regardless of whether López Fuentes is sentenced for these crimes or dies before that is possible, charging a high-level individual for horrific crimes brings with it its own measure of satisfaction. In a globalizing world, appeals to universal jurisdiction may be most important in empowering social actors–who are more than conveyor belts for pressuring states. Boomerangs are aimed at punishing states and individuals, but they are also basic if imperfect attempts to protect people or, in cases where that has failed, restore a semblance of wholeness to everyday lives.

This conversation between two prominent scholars, surveying how the idea of universal jurisdiction has evolved over the centuries, raises some intriguing questions. Both characterize universal jurisdiction as radical in historical terms, even though they are aware of the inherent tensions surrounding the practice; they are not at all deluded in assuming that universal jurisdiction is a fully effective means of securing accountability. Falk, in particular, reminds us of how international criminality is intimately bound up in geopolitics. The fact that the victors of World War II created today’s system of international justice, equating the losing side with everything reprehensible, is a contradiction and flaw at the core of today’s universal jurisdiction model. Without quite saying it, Falk’s and Hajjar’s comments push us to think of accountability beyond individual perpetrators–as a broader social and global phenomenon. Who is prosecuted, and who isn’t? And on some level, is the process of accountability as important as the outcome?

Share this:

If the trend toward universal jurisdiction is evident in anything it is in travel itineraries. As more arrest warrants are issued on the basis of universal jurisdiction, those indicted are compelled to change their travel plans. The latest, controversial example of this involves Israelis traveling to the United Kingdom. According to Patrick Martin of the The Globe and Mail,

the threat of applying universal jurisdiction to arrest prominent Israeli political and military leaders who travel abroad for alleged war crimes is keeping many Israelis home. (Globe and Mail, July 7, 2011)

Two prominent Israelis, including former defense minister Amir Peretz, left Britain this month soon after being warned of impending arrest for purported human rights crimes.

Word of both fleeing fueled the debate over reforming Britain’s law on universal jurisdiction. A reform bill to this effect (prohibiting judges from issuing arrest warrants based on private petitions, without the consent of the state prosecutor) was introduced last December, itself largely in response to Israeli pressure—after opposition leader Tzipi Livni was prevented from entering the UK in 2009, the result of an application filed by pro-Palestinian activists after Operation Cast Lead. (Spain too caved into Israeli pressure, watering down last year its 25-year-old universal jurisdiction legislation.)

The Israeli and British and other governments seem to concur that politically motivated prosecutions are polluting the judicial process, since applicants know full well that winning a legal case is highly improbable, and are undermining vital foreign relations.

These governments are correct that those seeking arrests on the basis of universal jurisdiction are acting politically. Without question, they are undertaking an explicitly political act—i.e., challenging existing power structures and contesting violations of international law. And they are doing so without necessarily equating accountability and punishment. An arrest warrant, after all, exposes minimally a story of abuse–who may have done what to whom–even though warrants themselves are typically issued through a legalized process, and only once certain conditions have been met.

Governments opposing these practices generally have it backward: they are claiming a political exception for violating deeply entrenched international norms—such as the prohibition against torture or the killing of civilians—and even for bypassing legal accountability in the face of serious abuse. Yet conceptions of wrongdoing, not the likelihood of punishment, should drive justice. Having to shift travel plans because of arrest warrants may just be the price of political leadership today.

In trying to persuade multiple audiences, Human Rights Watch uses a carrot-and-stick approach. First, it appeals to notions of self-interest: accountability would prove beneficial, enhancing the country’s reputation and reducing “the likelihood of foreign investigations and prosecutions of US officials—which have already begun in Spain [as well as Germany and France]—based on the principle of universal jurisdiction, since those prosecutions are generally predicated on the responsible government’s failure to act.” (6) Then, it explicitly calls on foreign governments to exercise universal jurisdiction, absent investigation and accountability. The practice, the report says, is:

a crucial tool by which victims of grave international crimes can obtain redress. It acts as a ‘safety net’ when the state with the most direct jurisdiction over the crimes is unable or unwilling to conduct an effective investigation and trial, and when international courts, including the International Criminal Court, either do not have jurisdiction or would not take up a specific case. (92)

Arguments like those advanced by the Human Rights Watch report reveal the centrality of the “extradite or prosecute” principle (aut dedere aut judicare). If a state does not extradite those accused of egregious human rights abuses, it must move forward itself with prosecution. Jurists have debated in recent years whether the two terms are interchangeable; does an ‘obligation to prosecute’ actually exist in international law? Defenders of universal jurisdiction typically claim that it does. Regardless of whether the traditional focus on extradition has evolved normatively into a state’s obligation to prosecute, the intended outcome in international law is the same: violators must be held accountable. “Extradite or prosecute” is a debate over means and mechanisms, not objectives and purpose.

A decade ago this month, Henry Kissinger used the ‘Pinochet precedent’ to attack the idea of universal jurisdiction. In a July/August 2001 piece in Foreign Affairs, Kissinger warned of the pitfalls of prosecuting foreign leaders for human rights crimes in national courts:

The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new….[A]ny universal system should contain procedures not only to punish the wicked but also to contain the righteous. It must not allow legal principles to be used as weapons to settle political scores….The world must respect Chile’s own attempt to come to terms with its brutal past.

The essay provoked a sharp response from Kenneth Roth of Human Rights Watch, who made a case for universal jurisdiction emphasizing the problem of impunity. Their faceoff in the pages of Foreign Affairs—former realpolitik statesman versus leading human rights spokesperson—marks a classic debate in the politics of universal jurisdiction.

But signs of dissent and polarization were present even before Kissinger’s diatribe against the Pinochet precedent: in the choreographed scene that played out across the London hospital where Pinochet was arrested in 1998; and on the streets of Chile when Pinochet returned home in 2001, as protestors and supporters confronted each other with slogans, banners, and occasional blows. Universal jurisdiction as an idea is simply too threatening not to tap into our most socially engrained fears—the same fears that spur on atrocities and manufacture enemies.

The point is that just as universal jurisdiction laws have diffused in the last decade and leaders worldwide have been put on notice, a parallel counter-movement has grown. Universal jurisdiction laws gradually have been repealed or trimmed back, even Belgium’s; those standing accused have eluded arrest; and dozens of countries signed bilateral immunity agreements with the United States, promising not to turn over American citizens to the International Criminal Court. A post September 11th world, where the language of national security became paramount, offered the perfect pretext for rolling back universal jurisdiction.

With neither the Pinochet precedent nor backlash likely to prevail, however, it’s important that the terms of the debate move forward—beyond the Kissinger-Roth exchange ten years ago. How does the ground-breaking case against a Latin American dirty-war dictator inform today’s dilemmas surrounding universal jurisdiction? How, for example, do we reconcile the precedent set by the case with accusations of judicial imperialism in Africa or charges of political gambling when pursuing leaders of powerful democracies? These are questions today’s supporters of universal jurisdiction must confront.

Earlier this month a U.S. House Foreign Affairs Subcommittee held a hearing into this year’s Ashrafmassacre and the U.N. Secretary General released another report on the matter; a few days later, a Spanish judge moved to pursue accountability. On July 11, Judge Fernando Andreu ordered three members of the Iraqi military to appear before the Spanish National Court (Audiencia Nacional); and he demanded that Prime Minister Nouri Kamal al-Maliki also make a court appearance after he leaves office. This is not the first time that Judge Andreu summons Iraqis in connection with Ashraf, a case he has been investigating for two years. But the timing of this latest bid for universal jurisdiction raises the stakes for all parties.

The Iraqi government seems hell-bent on disbanding the camp, where over 3,000 members of the controversial People’s Mujahedeen Organization have resided since the mid-1980s; and it’s unlikely that the latest incursion on April 8 when over 30 people died and more than 300 were injured will be the last. An Amnesty International statement released this month details serious ongoing abuses. Based on their actions so far, the United States and the United Nations seem prepared to look the other way—whether to appease Iran or avoid alienating the new Iraqi military or because the group in question is branded a terrorist organization.

Spain’s measures taken under the country’s universal jurisdiction law are unlikely to lead to individual convictions in Spain. Nor will the writ alone deter the Iraqi government from taking further action against the group. But the case, in conjunction with pressure from other governments and NGOs, may make it more difficult for the United States and United Nations to continue standing idly aside–while hundreds of civilians, including children (civilians they disarmed and now are legally obligated to protect) continue being attacked and even killed, all presumably in the name of Iraqi democracy and regional geo-strategy.

Universal jurisdiction traces its roots historically to piracy on the high seas and slavery, the earliest “crimes against humanity” in international law. Today, it’s pretty common for observers to draw links between terrorism and piracy–to assume these are analogous crimes. Reasoning by analogy is of course common in the law, but are we certain these crimes are sufficiently similar to warrant universal jurisdiction? What exactly should trigger universal jurisdiction in today’s world: a gap in authority or a violation of basic human rights? If it’s the latter, then continuing to treat piracy today as a crime against humanity is open to serious question.

Here is an excerpt from a piece I co-authored with Andrew Flibbert in May 2009 about modern-day piracy and how conceptions of humanness shape our perception of today’s pirates. The full essay can be accessed at CounterPunch.

While it is true that terrorism and piracy are both crimes against humanity in international law, differences in historical context reveal a crucial distinction. Years ago, piracy was labeled the first crime against humanity only because it occurred on the high seas, where no governing body ruled. Its extra-territoriality, not the odious nature of the crime, gave jurisdiction to all countries….

Legal options are available. In principle, national trials in the detaining state are feasible, just as the creation of a special international tribunal for piracy is an option. But the political will for either is altogether absent and the measures taken so far reveal a good-enough-for-the-enemy attitude. While countries like the United Kingdom, the United States, France, and the Netherlands are trying pirates in their home legal systems, the U.S. and U.K. have also transferred captured pirates to Kenya, a country with which they have entered into special agreements. Kenya’s legal system is ill-prepared, and already there are signs of mistreatment and abuse. This is precisely why the Law of the Sea Treaty, to which the United States is not a party, stipulates that pirates should be tried by the country that detains them; universal jurisdiction applies only to apprehension. States have been reluctant to prosecute pirates themselves, fearful of not meeting the high evidentiary standards of their own legal systems and unwilling to deal with asylum requests by pirates facing persecution back home.